Citation Nr: 0618737
Decision Date: 06/26/06 Archive Date: 06/30/06
DOCKET NO. 04-31 847A ) DATE
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On appeal from the
Department of Veterans Affairs Medical Center in Muskogee,
Oklahoma
THE ISSUE
Entitlement to payment or reimbursement of unauthorized
medical expenses incurred at Tahlequah City Hospital on
February 29, 2004.
REPRESENTATION
Appellant represented by: Oklahoma Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
J.R. Bryant, Counsel
INTRODUCTION
The veteran had active service from July 1968 to March 1970.
This case is before the Board of Veterans' Appeals (Board) on
appeal from decisions by the above Department of Veterans
Affairs (VA) Medical Center (MC), which is the agency of
original jurisdiction (AOJ) in this matter.
FINDINGS OF FACT
1. The veteran is not service-connected for any disability.
2. The veteran incurred medical expenses at Tahlequah City
Hospital, a private medical facility, on February 29, 2004.
3. VA payment or reimbursement of the costs of the private
medical care provided at Tahlequah City Hospital on February
29, 2004, was not authorized prior to the veteran's
undergoing that treatment.
4. The evidence establishes that the veteran's medical
treatment on February 29, 2004, was not for emergency
services.
5. A VA medical facility was feasibly available to the
veteran at the time he received private medical care on
February 29, 2004.
CONCLUSION OF LAW
The criteria for payment or reimbursement of unauthorized
non-VA medical expenses incurred at Tahlequah City Hospital
on February 29, 2004 were not met. 38 U.S.C.A. §§ 1725, 1728
(West 2002); 38 C.F.R. §§ 17.120, 17.1000-.1008 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), Public Law
No. 106-475, 114 Stat. 2096 (2000), substantially amended the
provisions of chapter 51 of title 38 of the United States
Code and, among other things, enhanced the notice and
assistance to be afforded to claimants in substantiating
their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (now
codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West
2002)).
The Secretary has issued implementing regulations, setting
out specific duties for notifying and assisting claimants in
developing evidence. 38 C.F.R. §§ 3.156(a), 3.159, 3.326(a)
(2005). Those regulations, however, are applicable only to
claims governed by 38 C.F.R. Part 3; thus, they do not apply
to this case, in which the governing substantive regulations
reside in Part 17 of 38 C.F.R. See 66 Fed. Reg. 45,620,
45,629 (Aug. 29, 2001) (Supplementary Information: Scope and
Applicability).
The VCAA contains a number of provisions pertaining to claims
development procedures, including assistance to be provided
to claimants by the RO, and notification as to evidentiary
requirements. We have carefully reviewed the VAMC file on
appeal, to ascertain whether remand to the RO is necessary in
order to assure compliance with the new legislation. We note
that the development of medical evidence appears to be
complete. Unlike many questions subject to appellate review,
the issue of whether the veteran is entitled to reimbursement
or payment of medical expenses, by its very nature, has an
extremely narrow focus.
In a letter dated in August 2004, the AOJ informed the
veteran of its duty to assist him in substantiating his claim
under the VCAA, and the effect of this duty upon his claim.
In addition, the veteran was advised, by virtue of the August
2004 statement of the case (SOC), of the pertinent law and
what the evidence must show in order to
substantiate his claim, and adequately explained the basis
for the decision. The VAMC has obtained the pertinent
records for the treatment in question which the veteran
received. He has not submitted or made reference to any
additional records which would tend to substantiate his
claim. It appears clear, therefore, that there are no
outstanding records or other evidence that could support the
claim.
The various judicial precedents pertaining to VCAA
requirements on claims for disability compensation, see,
e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002);
Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v.
Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds,
444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet.
App. 473 (2006), do not come into play here, as they do not
govern claims under Part 17 of VA's Code of Federal
Regulations.
Accordingly, we find that VA has satisfied its duty to assist
the veteran in apprising him as to the evidence needed, and
in obtaining evidence pertaining to his claim, under the
VCAA. 38 U.S.C.A. §§ 5103, 5103A (West 2002). The Board
therefore finds that no useful purpose would be served in
remanding this matter for more development. Such a remand
would result in unnecessarily imposing additional burdens on
VA, with no benefit flowing to the veteran. The Court has
held that such remands are to be avoided. See Winters v.
West, 12 Vet. App. 203 (1999) (en banc), vacated on other
grounds sub nom. Winters v. Gober, 219 F.3d 1375 (Fed. Cir.
2000); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991);
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). See also
Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc).
It is the Board's responsibility to evaluate the entire
record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002).
When there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant.
38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2005).
II. Factual Background
The veteran is seeking reimbursement for the costs of medical
treatment received during an emergency room admission to
Tahlequah City Hospital, a private medical facility, on
February 29, 2004, for acute bronchitis. The record reflects
that the veteran was seen in the emergency room at 9:09 pm,
with complaints of cough and fever. The triage report
indicates that his temperature was 98.7 degrees. It appears
that laboratory tests were done and chest X-rays taken
(results showed hyperinflation without acute process).
However, no treatment was rendered, and over-the-counter
medication was prescribed. The veteran was discharged home
at 10:05 the same night.
In April 2004, the claim for payment of medical expenses was
denied by the Muskogee VAMC, on the basis that the veteran
was not treated at the private medical center for a service-
connected disability and a VA facility was feasibly available
to provide care.
III. Analysis
It is neither contended, nor suggested by the record, that
the veteran had any prior authorization from VA to receive
the medical care he was provided from Tahlequah City Hospital
on February 29, 2004.
Generally speaking, in order to be entitled to payment or
reimbursement of medical expenses incurred at a non-VA
facility, a claimant must satisfy three conditions. There
must be a showing that:
(a) The care and services rendered were
either:
(1) for an adjudicated service-
connected disability, or
(2) for a non-service-connected
disability associated with and held
to be aggravating an adjudicated
service-connected disability, or
(3) for any disability of a veteran
who has a total disability,
permanent in nature, resulting from
a service-connected disability, or
(4) for any injury, illness, or
dental condition in the case of a
veteran who is participating in a
rehabilitation program and who is
medically determined to be in need
of hospital care or medical services
for reasons set forth in 38 C.F.R. §
17.47(i) (formerly § 17.48(j))
(2000); and
(b) The services were rendered in a
medical emergency of such nature that
delay would have been hazardous to life
or health; and
(c) No VA or other Federal facilities
were feasibly available and an attempt to
use them beforehand or obtain prior VA
authorization for the services required
would not have been reasonable, sound,
wise, or practicable, or treatment had
been or would have been refused.
If any one of the foregoing requirements is lacking, the
benefit sought may not be granted. See 38 U.S.C.A. § 1728
(West 2002); 38 C.F.R. § 17.120 (2005); Zimick v. West, 11
Vet. App. 45, 49 (1998); Malone v. Gober, 10 Vet. App. 539,
547 (1997).
In this case, veteran is not service-connected for any
disability. Thus, he fails to meet the first of the three
criteria under 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.120.
Since all three requirements have not been met, entitlement
to reimbursement or payment by VA of the cost of unauthorized
medical treatment provided on the date in question, must be
denied under these provisions.
In considering every possible theory of entitlement, the
Board has also considered whether reimbursement is warranted
under the Veterans Millennium Health Care and Benefits Act,
Public Law No. 106-177. See Schafrath v. Derwinski, 1 Vet.
App. 589, 595 (1991). The Millennium Act provides general
authority for reimbursement for the reasonable value of
emergency treatment furnished in a non-Department facility to
those veterans who are active Department health-care
participants (i.e., enrolled in the annual patient enrollment
system and recipients of Department hospital, nursing home,
or domiciliary care under such system within the last 24-
month period) and who are personally liable for such
treatment and not eligible for reimbursement under the
provisions of 38 U.S.C.A. § 1728. See 38 U.S.C.A. § 1725
(West 2002); 38 C.F.R. §§ 17.1000-1008 (2005).
The term "emergency treatment" is defined as medical care
or services furnished when VA or other Federal facilities are
not feasibly available and an attempt to use them beforehand
would not be feasible, when such care or services are
rendered in a medical emergency of such nature that a prudent
lay person reasonably expects that delay in seeking immediate
medical attention would be hazardous to life or health, and
only until such time as the veteran can be transferred safely
to a VA or other Federal facility. 38 U.S.C.A. § 1725(f)(1).
In this case, the veteran's allegation that the treatment
provided on February 29, 2004, was emergency in nature has
not been established. There is also evidence that medical
services were feasibly available from the Muskogee VAMC.
Specifically, the Tahlequah City Hospital records indicate
without question that the veteran's condition was not life
threatening. The veteran did not have a fever when
admitted; there was no competent evidence that his symptoms
worsened during his time in the emergency room; the diagnosis
at discharge was acute bronchitis; and he was discharged home
within an hour of his arrival, without treatment. There is
simply no competent evidence in any of the associated records
that the veteran's symptoms constituted a medical emergency.
The evidence contained in the claims file notes the Muskogee
VAMC was 26 miles from the veteran's home. In addition, it
was the opinion of the VA physician at the Muskogee VAMC that
VA facilities were available for the veteran's care, and that
care provided was non-emergent. The Board believes this
medical opinion should be accorded considerable weight,
especially in view of the lack of any medical evidence to the
contrary. Moreover, there was no competent evidence that any
attempt to use VA facilities beforehand or to obtain prior VA
authorization for the services required would have been
unreasonable, unsound, unwise, or not practicable. Moreover,
the Board observes that if the situation had been clearly
emergent the veteran should, and could, have arranged for an
ambulance for transportation rather than driving himself.
Finally, there was no competent evidence that the required
treatment was, or would have been, refused. Consequently,
the law and regulations in this case are dispositive and
prohibit the payment or reimbursement requested by the
veteran. See Sabonis, 6 Vet. App. at 430.
In arriving at this decision, the Board notes that the only
reports of a medical emergency or the lack of available VA
facilities come from the veteran. As layman, however, he is
only qualified to report evidence which is capable of lay
observation. He is not qualified to render opinions which
require medical expertise, such as the diagnosis or cause of
a particular disability or a determination that a particular
situation constitutes a medical emergency. 38 C.F.R. §
3.159(a)(1)-(2) (2005); Espiritu v. Derwinski, 2 Vet. App.
492, 494-95 (1992). Therefore, without more, his opinion
cannot be considered competent evidence to support his claim.
ORDER
Entitlement to payment or reimbursement of unauthorized
medical expenses incurred at Tahlequah City Hospital on
February 2, 2004, is denied.
__________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs